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Sunday, 21 April 2013

This Kat is a modest type. Rarely do his words evoke an analogy to pornography. But recently he found himself speaking at a local conference (with the main address having been given by a Justice of the Supreme Court) where such evocation was made. The topic of this Kat's address was IP (read: copyright) protection of formats in connection with movies, television programmes and the like. The issue that this Kat placed before the audience was simple: is it possible to come up with a definition of "format" that is applicable to the copyright law? After all, copyright law does not protect all forms of creative works, both only those works that fall under one of the statutory categories. If the so-called format cannot be robustly characterized in a manner that allows it to be reasonably categorized as a defined work under the copyright law, it would seem that seeking copyright protection is a non-starter. If that is so, then the question that follows is why enter into a licence agreement for use of a format if the legal subject matter does not yield a workable definition for copyright purposes. As such, a lot rides on the question of whether we can successfully define "format".

In that connection, this Kat first asked the audience to take several minutes, to pull out a pen or pencil, use a table napkin if need be, and propose a definition of "format". We then asked several members of the audience, including a professor of law, to each read out his or her proposed definition. Three such definitions were offered, with wide, even chasmic differences between them. While not promising, this Kat could attribute the diversity of definitions to the situation, with only a few minutes allotted to the task. Surely, when courts and commentators have the luxury of time and consultation, we can expect a much greater convergence in understanding. After all, some courts have ruled in favour of copyright protection in formats. This must mean that there is a relatively consistent understanding of the term. This Kat was, however, wrong.

Set forth are four examples of definitions or characterizations of "format".

1. "[T]he difficulty of the concept that a number of allegedly distinctive …features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show; the questions and answers in the quiz show, etc." (Green v. Broadcast Corporation of New Zealand, 1989) RPC (1989) 106 (22).

2. "The framework within which the central running characters will operate and which framework is intended to be repeated in each episode; the setting, theme, premise or general story line of the proposed serial or episodic series; and central running characters which are distinct and identifiable, including detailed characterizations and the interplay of such characters. It also may include one or more suggested story lines for individual episodes (Jessica E. Bergman, "No More Format Disputes: Are Reality Television Formats the Proper Subject of Federal Copyright Protection," The Journal of Business, Entrepreneurship & the Law (2011)) here.

3. "…[T]he framework of a reality show does not directly correspond to the framework of a scripted show. When identifying the protected elements of a scripted show, we look to 'plot, theme, dialogue, mood, setting, pace and sequence.' But a reality show does not employ these same elements, nor do these elements take the same form in a reality show as they do in a protected script … leav[ing] the true expressive elements of a reality show unprotected" (J. Matthew Sharp, "The Reality of Reality Television: Understanding the Unique Nature of the Reality Genre in Copyright Infringement Cases," 8 Vanderbilt Journal of Entertainment and Technology Law (2005).

4. "Formats are compounds of creative, business and marketing elements. Some are dictated by external factors … and some are generated by the internal logic of the show, such as its goals … and its target audience. The value of a format derives to some extent from each individual element, but mostly from the combination of elements and the ability to create a symbiotic nexus between them" (Neta‐li E. Gottlieb,"Free to Air? Legal Protection for TV Program Formats Chicago," John M Olin Law & Economics Working Paperno. 513 (2d series), 2010 here .

This Kat would like to believe that these definitions or characterizations are representative of the positions taken by courts and commentators. Assuming that this is true, then what seems to emerge are two things. First, it is difficult, bordering on the virtually impossible, to distill a single meaning based on these sources. Secondly, even if one can do so, it would appear to be extraordinarily challenging to wedge any such understanding within the notion of work (even if some courts across various jurisdictions have done so).

One retort is to remind this Kat that the notion of format covers a number of different types of creative endeavour. Three major categories come to mind: (i) game shows and other competitions; (ii) news and information programmes; (iii)ever-expanding forms of reality programming. Perhaps the way to overcome the daunting diversity in definitions is to provide a definition for each category. Even if this is practicable, however, the question still remains: why should any of these format types be appropriately understood as a "work" in the copyright sense? After all, in the 1980s, we witnessed the difficulty in fitting computer software within the notion of a literary work (the contents of even the most elegant source code lack much of a sense of plot or character) quickly led to extension of copyright protection for the "look and feel" of the programme. Within a few years, (most) courts saw the error in the judicial excess of their ways. Attempting to stretch copyright beyond its natural boundaries almost always leads to legal no good.

Which brings us back to pornography. One of the speakers at the conference sought to resolve the issue of definition of "format" by proposing an analogy to the well-known test for pornography offered by the U.S. Supreme Court Justice Potter Stewart in his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964)--"I know it [pornography or format] when I see it." (Full disclosure--while the movie theatre at issue was located in this Kat's former home town, he does not recall ever having frequented it.) This Kat cannot opine on how well this test has served U.S. jurisprudence. Whatever its applicability to pornography, it does not seem appropriate to apply it by analogy to the definition of "format" for copyright purposes. The question therefore remains—is copyright protection an appropriate means to protect formats?

4 comments:

Andy J
said...

Neil, I'm glad that towards the end of your piece you raised the issue of whether formats should be covered by copyright. It was a question that entered my mind right at the outset. Certainly trying to define 'format' poses problems which I don't propose to address. But why should we (or more precisely, the courts or Congress) be interested in expanding the scope of copyright in this way? The simple answer is that they are under pressure from Big Business to do so. Clearly there is a secondary academic interest amongst copyright scholars, but I would venture to suggest that is not the main driver for expansion. But fundamentally, where is the benefit for society in company A preventing the duplication of a TV program which appears to reproduce elements of one its (A's) shows in another country without a licence. Just as patents to protect other types of business processes and methods need to be examined and approved on a region by region basis, I would posit that something as complex and non-author based as a TV show format should also undergo something similar before it can gain any sort of protection as IP. The problem with defining a format, even as an academic exercise, is that before too long it will become the de facto basis for an international treaty sponsored by the US (acting on behalf of their considerable entertainment industry) along the lines of ACTA, and in parallel to this we will see pressure being applied to other nations to bring their legislation into line much as we have seen over laws to crack down on illegal file-sharing. We have bolted too many alien concepts (your mention of software is apposite) onto copyright already. Perhaps its time to step back and examine a wholly new set of rights (cf Design right) which aplly to works made in large collaborative groups such as movies and TV programmes, where there is no discernable 'author' in the original sense say as occurs with the author of a play. And does the prospect of a 120 year work for hire copyright term even make sense when the realistic lifetime of a format can be measured in single figures?

My name may be familiar in the context of format protection, even if the analysis by Shelley Lane and myself arguing that a format should beprotected as a dramatic work has been overlooked. If it is not you mayfind that Jeremy still remembers me.

The pointillism you display about formats seems unnecessary. It is acommonplace that a literary work may come into copyright by being spoken to a dictaphone, and the definition in S. 178 of the CDPA is not one of limitation but inclusion.

The features of a format may readily be reduced to writing, and it might therefore be treated as a literary work - subject to the well-known "recipe"issue (is baking a cake in accordance with a recipe a reproduction for copyright purposes?) if it were not excluded by being a "dramatic work".

The "definition" of "dramatic work is not limitative but inclusory and it has been left to the courts do decide what is and what is not a dramatic work.

The definition of "musical work" is circular, in referring to "music" and it has been elft to the courts to decide what is and what is not music.

Much the same is true of the "definitions" of "building" "graphic work" and "sculpture" all of which are key to the meaning of "artistic work".

In short, the courts are perfectly well suited to defining what is and what is not a "format". The rest of the world knows what one is and it is reminiscent of the usualy unfair criticism of King Canute to say that the absence of a statutory limitative definition precludes legal protection for a format.

Be that as it may, the idea that the carefully selected quotations mean that there cannot be a workable meaning ascribed to the word "format" is foolish.

A format can ony exist when a number of things are or are intended to be made in accordance with it. It seems to me that those things might be limited to television programmes and/or films.

The format resides in the constant or repeated features that convey to the reasonable viewer that there is a connection between one thing made to a format and another thing. If you go back to Green's case, the things that made the Inland Revenue assume that the New Zealand programmes had been licensed by him, because of the similarities to the original (to the extent that it was original) "Opportunity Knocks" sequence of programmes.

Format is not protected subject-matter but composite subject of an agreement. To this end its 'bible' is work of literature \screenplay\ the program is audiovisual work, there's the leading position of the TM etc= It's a bias to seek characterization of the very format.

A bit late, but would an early oft-quoted definition from a French judge of what constitutes a format (in this case of a TV game involving questions on the Highway Code, but which was more than a simple quiz) be of interest here?

which I would translate as "a format should be understood as a sort of user guide or instruction manual that sets out how - always the same - things will progress from a formal point of view, consisting of a series of sequences divided up in a pre-established manner, the creation consisting, apart from the physical form, in sequencing of situations and scenes, i.e. how the storyboard is made up consisting of a starting point, the action and an outcome, the format providing a framework within which the work will be able to develop,… ".